Sunday, March 30, 2008

Back on March 16, Patrick Cockburn, writing in the Independent, has this to say about the current situation is Iraq:

Five years of occupation have destroyed Iraq as a country. Baghdad is today a collection of hostile Sunni and Shia ghettoes divided by high concrete walls. Different districts even have different national flags. Sunni areas use the old Iraqi flag with the three stars of the Baath party, and the Shia wave a newer version, adopted by the Shia-Kurdish government. The Kurds have their own flag.

...The US and its allies never really understood the war they won that started on 19 March 2003. Their armies had an easy passage to Baghdad because the Iraqi army did not fight... The war was too easy. Consciously or subconsciously, Americans came to believe it did not matter what Iraqis said or did. They were expected to behave like Germans or Japanese in 1945, though most of Iraqis did not think of themselves as having been defeated...

In that first year of the occupation it was easy to tell which way the wind was blowing. Whenever there was an American soldier killed or wounded in Baghdad, I would drive there immediately. Always there were cheering crowds standing by the smoking remains of a Humvee or a dark bloodstain on the road...

After the Sunni guerrillas blew up the Shia shrine in Samarra on 22 February 2006, sectarian fighting turned into a full-blown civil war... The Sunni defeat in the battle for Baghdad in 2006 and early 2007 was the motive for many guerrillas, previously anti-American, suddenly allying themselves with American forces. .. There is now an 80,000 strong Sunni militia, paid for and allied to the US but hostile to the Iraqi government. Five years after the American and British armies crossed into Iraq, the country has become a geographical expression.

Writing on Alternet, in an article entitled "Five Things You Need to Know to Understand the Latest Violence in Iraq," Josh Holland and Raed Jarrar describe:

Heavy fighting has spread across Shia-dominated enclaves in Iraq over the past two days. The U.S.-backed regime of Prime Minister Nouri al-Maliki has ordered 50,000 Iraqi troops to "crack down" -- with coalition air support -- on Shiite militias in the oil-rich and strategically important city of Basra, U.S. forces have surrounded Baghdad's Sadr City and fighting has been reported in the southern cities of Kut, Diwaniya, Karbala and Hilla. Basra's main bridge and an oil pipeline connecting it to Amara were destroyed Wednesday. Six cities are under curfew, and acts of civil disobedience have shut down dozens of neighborhoods across the country. Civilian casualties have reportedly overwhelmed poorly equipped medical centers in Baghdad and Basra...

The conflict is one that the U.S. media appears incapable of describing in a coherent way. The prevailing narrative is that Basra has been ruled by mafialike militias -- which is true -- and that Iraqi government forces are now cracking down on the lawlessness in preparation for regional elections, which is not.

Remember the declarations in the past such as George's "Mission Accomplished," Cheney's "Last Throes of the Insurgency," Rumsfeld's "We'll be greeted as liberators, or even McCain's "Hillary should apologize to Petreus." Weren't those misguided conclusions the result of errors similar to the one the authors describe as taking place today?

"The conflict doesn't conform to the analysis of the roots of Iraqi instability as briefed by U.S. officials in the heavily-fortified Green Zone. It also doesn't fit into the simplistic but popular narrative of a country wrought by sectarian violence, and its nature is obscured by the labels that the commercial media uncritically apply to the disparate centers of Iraqi resistance to the occupation."

Glenn Greenwald this week described "What can and cannot be spoken on television" and the difficulties encountered when you bring an actual Iraqi on your show to talk about the significance of the 5th Anniversay of the "Liberation" and all he wants to talk about is how bad things are:

ROSE: And obviously, what we want to accomplish on this fifth anniversary of the American invasion, or the coalition invasion of Iraq, is how they see it as Iraqis, five years later.

Give me an assessment.

ALI FADHIL: That's a big question, assessment. Well, basically, probably, I`ll kind of sum it in a few words.

It's -- we have a country where the government is not functioning after five years. We have too many internal problems. And we have the violence increasing day after day.

We have a huge crisis of refugees inside and outside Iraq. We have a total failure of the -- of the civilian -- the civilian structure and what's happening inside. We have the sectarian divisions increasing. We didn't have that before. Now we have it.

So, basically, my assessment is we have a whole nation called Iraq, now it's wiped out.

Greenwald goes on to describe Rose's reaction to this assessment:

Rose was as adversarial and argumentative -- angry, even -- as he ever gets with anyone, because he plainly did not anticipate, and did not like, that he was being exposed to such hostility towards our Freedom-spreading, Liberty-loving Liberation of the grateful, lucky (dead and displaced) Iraqi people.

"Once you got to Iraq and took it over, took down Saddam Hussein's government, then what are you going to put in its place? That's a very volatile part of the world, and if you take down the central government of Iraq, you could very easily end up seeing pieces of Iraq fly off... It's a quagmire if you go that far and try to take over Iraq."

His name? Dick Cheney, the same man, who, when asked this week by ABC's Martha Raddatz, on the fifth anniversary of the Iraq invasion, about the fact that "Two-third of Americans say it’s not worth fighting," said simply, "So?"

Later, when asked by Raddatz about the milestone of 4000 dead troops, Cheney emphasized the existence of an "all volunteer force" and also described the person who, "obviously" carries the biggest burden in this conflict:

"It obviously brings home I think for a lot of people the cost that's involved in the global war on terror in Iraq and Afghanistan," Cheney said in the interview, conducted in Turkey. "It places a special burden obviously on the families, and we recognize, I think — it's a reminder of the extent to which we are blessed with families who've sacrificed as they have."

"The president carries the biggest burden, obviously," Cheney said. "He's the one who has to make the decision to commit young Americans, but we are fortunate to have a group of men and women, the all-volunteer force, who voluntarily put on the uniform and go in harm's way for the rest of us."

In a nutshell, just because I described the area as a "quagmire" 14 years ago doesn't mean I, I mean he, shouldn't be allowed to send you there for several deployments even though 70% of the American public doesn't think it's worth fighting.

Reminds me of the story Ron Suskind tells in "The One Percent Doctrine" about Cheney's "nickname inside the CIA [being] "Edgar" (as in Edgar Bergen), casting President Bush in the puppet role of Charlie McCarthy."

Evidently he believes that troops are like puppets too. Or, as Kurt Vonnegut put it in "A Man without a Country:"

"By saying that our leaders are power-drunk chimpanzees, am I in danger of wrecking the morale of our soldiers fighting and dying in the Middle East? Their morale, like so many lifeless bodies, is already shot to pieces. They are being treated, as I never was, like toys a rich kid got for Christmas."

Friday, March 28, 2008

When I was a public defender, I spent five long years defending clients accused of misdemeanors, and learned a lot in the process. I also spent a lot of time writing down my client's stories, hoping to one day publish a book which would (1) pay off my student loan debt (didn't happen) and (2) inform people about the fate of my "damned" clients, who were struggling with addiction, poverty, and mental illness. That's not to say a lot of them weren't blameworthy, only that they were often misunderstood or punished too harshly, or foolishly, like the time the judge fined my client for panhandling. How do you suppose he raised the money?

The stories are long, as far as blog posts go, but they're all true. The names have all been changed to protect the presumed innocent. One story, heavily edited, even made it into the Champion, the magazine of the National Association of Criminal Defense Attorneys. In that one, since I had to change the names, I used my maternal grandma's name, Dora, and my paternal grandpa's name, Alvin, since I had to change the names. I even used the name of my friend, John Haeberle, for the doctor, since, well, he is one.

I hope you enjoy them. Although I wrote them, I really just recorded them and felt like they were handed to me and that they truly needed to be told. I also added a link, if you ever want to check them out again.

Thursday, March 27, 2008

Scott Greenfield points out on his blog, Simple Justice, that Justice Scalia views the wrongful conviction rate for felonies as "less than three-hundredths of 1 percent." But, as this New York Times article demonstrates "there is reason to question Justice Scalia’s math," which, as Samuel Gross points out, is like concluding the number of baseball players using steroids equates perfectly to the number that have been caught.

The fact is that few defendants are able to utilize DNA to demonstrate their innocence, but Scalia's math assumes that they are nonetheless actually guilty despite the lessons we've learned, or should learn, from DNA exonerations.

Speaking of innocence, the Innocence Project, on its Innocence Blog, asks how many innocent are behind bars and concludes that "there is a consensus that nobody ruly knows how many innocent people are in prison – and we may never know." They also observe:

"The Innocence Project has always said that DNA exonerations are just the tip of the iceberg, since only 5-10% of all criminal cases involve biological evidence that can be subjected to DNA testing (and even in those cases, the evidence is often lost, destroyed or too degraded to yield results in DNA testing). But the 215 wrongful convictions overturned to date by DNA testing illustrate the broader causes of wrongful conviction and show the need for reforms that can prevent injustice."

In other words, we know via DNA exonerations that a significant portion of convicted persons were actually innocent. We also know that between 1 in 10 and 1 in 20 defendants can utilize DNA to demonstrate the falsity of their conviction. While Scalia assumes their guilt, this ignores the lessons that DNA exonerations should teach us about the wrongful conviction rate as a whole.

- Black men are more likely to be falsely convicted of rape than are white men, particularly if the victim is white. - Juveniles are more likely to confess falsely to murder.- Exonerated defendants are less likely to have serious criminal records.- People who maintain their innocence are more likely to be innocent.- The longer it takes to solve a crime, the more likely the defendant is not guilty.

I have a trial coming up involving a juvenile charged with being an accessory to a theft. He "confessed" but I'm still having the trial as he seems to fit into the "confess falsely" group above, given his age and the fact that several of his friends confessed at the same time.

All the other defendants have admitted and I have a feeling the judge thinks of me as a pariah for holding out. But I haven't gotten a chance to speak yet and still think the evidence is weak.

I worry that, just as peer pressure got to the kid, the confession will be too much to overcome, but want to avoid putting another kid into the "falsely convicted" group described above. So, we're not going down without a fight.

Friday, March 21, 2008

Today's Omaha World-Herald features an article describing a fine levied against a local car dealership for engaging in title fraud. The scheme involved allowing car dealers in Missouri to sell Hummers and the fraud involved making it appear as if the local dealership had sold the vehicles. The dealership benefitted because it received manufacturer's incentives for "selling" these vehicles when they were actually sold in various other locations.

A state vehicle licensing board fined Huber Hummer of Omaha $100,000 Thursday, nearly seven times the previous largest penalty given to a car dealership in Nebraska. The fine was part of a consent agreement between the Nebraska Vehicle Industry Licensing Board and Huber to settle a case in which Huber was accused of falsifying 214 new vehicle titles — mostly for Hummers — to gain $300,000 in incentive payments from General Motors.

Dealership owner Ron Huber and his Omaha attorney, Ed Warin, made no comment during Thursday's hearing and declined to comment afterward. The consent agreement — similar to a no-contest plea in court — involved no admission or denial of guilt by the Huber franchise, according to the board's chairwoman, Beverly Neth.

The fine was the result of negotiations initiated by the Huber franchise after raids on the company's records by law enforcement investigators 16 months ago. "This stiff penalty sends a message to dealers that the licensing board is watching," Neth said

.

But, let's think about this for a moment: the dealership stood to gain $300,000 if the scheme had worked. Because it got caught , it had to pay $100,000. A few low-level employees, the salespeople, were fired but management was left untouched.

I wonder if I can use this example the next time I represent someone in court, arguing that it would be a "stiff" penalty to simply fine my client for 1/3 the amount he stood to gain if his scheme worked?

Picture the prosecutor, speaking to the press afterwards, describing the penalty as "send[ing] a message to [criminals] that the [government] is watching."

Would the press allow the prosecutor to describe the penalty this way or would it lambaste him for being soft on crime?

Imagine if judge had followed such a plea agreement in criminal court. Wouldn't the press criticize the judge for being soft, point out the message this sent, and rightly observed that there is no incentive to stop from committing crimes when the penalty you face is much less costly than what you stood to gain if it worked?

This reminds me of the exploding gas tanks on the Ford Pinto. According to the link to the Safety Forum website, "in Grimshaw v. Ford Motor Company (1981) 119 Cal. App. 3d 757 a crashworthiness case involving a 1972 Pinto hatchback, the jury rendered a substantial punitive damages award against the manufacturer. On appeal, Ford contended that the evidence was insufficient to support a finding of malice. The California appellate court disagreed, stating:"

"Through the results of the crash tests Ford knew that the Pinto's fuel tank and rear structure would expose consumers to serious injury or death in a 20 to 30 mile per hour collision. There was evidence that Ford could have corrected the hazardous design defects at minimal cost but decided to defer correction of the shortcomings by engaging in a cost-benefit analysis balancing human lives and limbs against corporate profits. Ford's institutional mentality was shown to be one of callous indifference to public safety. There was substantial evidence that Ford's conduct constituted ‘conscious disregard' of the probability of injury to members of the consuming public." (119 Cal. App. 3d at 813)

As the chart above and the case illusrates, these companies simply undertake a cost benefit analysis. Until it doesn't add up, they'll keep doing it.

As Anatole France said, "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Wednesday, March 19, 2008

Something terrible happened to me this morning. I was in the kitchen, the smell of coffee just reaching my nose, the pre-warmed cup cradled in my hands as I let the dog out and tried, once again, to figure out how I was going to be ready to walk out the door in 30 minutes without making everybody late.

My 14-year old daughter, up early for once, was playing her sister's Nintendo DS, making distracted conversation with me as I focused on my cup and she on her electronic toy, each waking up in our own way.

And then she said the thing no father ever wants to hear. I knew, with the Elliot Spitzer incident, that there'd been been a lot of talk about this particular profession in the news, news which we don't think reaches our distracted kids' ears but undoubtedly seeps in like unseen pollutants.

As she played along on her Phoenix Wright game, she said those words that still haunt me. She said, "Dad. I think I know what I want to do for a job when I get older."

I have trouble even writing about what she said next, but I have to get it out, before it eats me up inside. Here goes...

I did take some solace in what she said next, though, which she didn't hear from me: "It just looks like they have it made in the shade. The judges always believe them and they don't have to work as hard on their cases."

You see, that's what makes it so hard. It's obvious I've instilled values in her, an ability to see the truth, but she wants to "give in to the dark side" already.

If I hadn't spent the last seven years as a public defender, I'd have to change my will.

Tuesday, March 18, 2008

I thought this private practice gig was supposed to be easier than the p.d.'s office? I worked 14 hours on a case on Sunday and then closed down the jail last night (10pm). Not the best way to spend St. Patrick's Day, but it could have been worse. I feel bad for the client I met as he called me several weeks ago, asking whether he should keep cooperating with the police and take a polygraph as the police "investigated" him for a serious felony, or rather tried to get him to admit it.

Obviously I told him not to take the test, telling him to politely tell them that he hired a lawyer, that he was told to not talk to them anymore, and that if they had a problem they could call me. He even called back to thank me, telling me he felt good "taking control."

Of course, they arrested him right after he told them this.

Later, I told this story to the judge at a bond review and, upon hearing it, even the prosecutor agreed with me that his bond should be reduced from $25,000 to $2500. But the judge, saying these were "serious charges" reduced it to $10,000, which he doesn't have.

His mother, purely out of love for him and frustration for where he's at and calling me to inquire about retaining me, said something to me about giving him advice that landed him in jail, something along the lines of "well, look where he ended up after he talked to you." I told her I couldn't control what they did, but that I wouldn't change a thing, even considering where he ended up. I even described it as million dollar legal advice, pointing out that I'd given it for free.

And then I asked her if she thought they would have held off on arresting him if they had enough information to convict. I haven't seen the discovery, but my hunch is that, while they can arrest him out of frustration that he "lawyered up," they would have acted a lot sooner if they were holding "good cards."

They might be able to lock him up for months, and blame it on me, but I'm hoping I kept him from going away for years.

But, seeing him going a little stir crazy, stuck in the "max" mod awaiting trial, stuck with all the people accused of serious felonies, I felt a little sickened.

I'm hoping that even though my advice landed him in jail for the short term, it'll keep him out in the long. They can put him in jail, laughing at the time that he "should have done what they asked" (and not called a lawyer) but I hope to have the last laugh.

Friday, March 14, 2008

A few weeks ago, someone asked me why the court system typically does such a poor job of working with addicts. I told them it was because judges typically misunderstand the first step of Alcoholics Anonymous. It's not that these judges are willfully doing the wrong thing; it's that the solution to dealing with addicts and alcoholics is often counterintuitive. What a person who is not an alcoholic expects that a true one should do to overcome his or her problem is often the opposite of what should take place, at least in my experience. "Just quit drinking" isn't good advice for a true alcoholic as they've likely tried that and it would only work on someone who didn't belong at AA.

Don't most judges (and lawyers for that matter) expect addicts and alcoholics to use their will to overcome their problem, expecting that they should "admit they are powerful over alcohol and that their lives had become managable?" That emphasis on quitting right now, before you get to treatment, reflects both a need for courts to function quickly as well as a fundamental misunderstanding of the 12 steps of AA, at least as I understand them.

The real first step in AA is to admit that you are powerless over the substance and that your life has become unmanagable. In short, the first step isn't to take charge over your will; it's admitting that your will got you in trouble. It's not a step of empowerment, but of surrender.

I'm not in "the program," so maybe I know just enough to get in trouble. But I've wasted a lot of time yelling at addicted clients over the years to know that it did no good and caused the client, who needed help, to just shut down. I might as well have been beating my head against the wall.

I've had more luck being the voice of hope, telling even the worst addicts that it didn't have to be this way and that it probably wasn't their fault if they were born an addict. That seems to get their attention as it's probably the opposite of what they're hearing from the judge and what they're probably telling themselves.

Then I suggest that they get to AA ASAP, being careful not to put any labels on them, but just suggesting that if they have that disease, the other people at AA who have it will help them treat it, probably better than the professionals will. And, I tell them, the price is right.

Unlike the court who typically threatens them with jail or the prosecutor who threatens them with prosecution, I try to be the one that says "you'll be o.k., as long as you can do the little things right," hoping that this makes it sound like they don't have to solve all their problems today, just do something small like get to a meeting.

A few years ago, I learned a lot watching the movie "My Name is Bill" about the founder of A.A. After a couple years of just yelling, I knew it didn't work and the movie taught me a lot about the value of having alcoholics share stories with each other, rather than getting yelled at by people who really don't understand what they're going through.

Rather than making things worse for my clients, I now offer some hope and then just try to get out of the way, suggesting that they get to AA as it might help them sort out whether they belong there or not.

The truth is that AA was founded by a stockbroker who began talking to a physician and they discovered how helpful this was, how "one alcoholic to another" worked for them. The third member of A.A., who they tried their message out on?

Thursday, March 13, 2008

I was reading Slate.com and came across an audiobook of the week section. Since I'm in the car hours every day, I've found it's the only time I get to "read" non-work related stories. In reading about one of the authors featured, Elizabeth Gilbert, I came across her 2002 book called The Last American Man. It tells the story of Eustace Conway.

By the time Eustace Conway was seven years old, he could throw a knife accurately enough to nail a chipmunk to a tree. By the time he was ten, he could hit a running squirrel at fifty feet with a bow and arrow. When he turned twelve, he went out into the woods, alone and empty-handed, built himself a shelter, and survived off the land for a week. When he turned seventeen, he moved out of his family's home altogether and headed into the mountains, where he lived in a teepee of his own design, made fire by rubbing two sticks together, bathed in icy streams, and dressed in the skins of the animals he had hunted and eaten. This move occurred in 1977, by the way. Which was the same year the film Star Wars was released. The following year, when he was eighteen, Eustace Conway traveled the Mississippi River in a handmade wooden canoe, battling eddies so fierce, they could suck down a forty-foot tree and not release it to the surface again until a mile downriver. The next year, he set off on the two-thousand-mile Appalachian Trail, walking from Maine to Georgia and surviving almost exclusively on what he hunted and gathered along the way. And in the years that followed, Eustace hiked across the German Alps (in sneakers), kayaked across Alaska, scaled cliffs in New Zealand, and lived with the Navajo of New Mexico. When he was in his mid- twenties, he decided to study a primitive culture more closely in order to learn even more ancient skills. So he flew to Guatemala, got off the plane, and basically started asking, "Where are the primitive people at?" He was pointed toward the jungle, where he hiked for days and days until he found the remotest village of Mayan Indians, many of whom had never before seen a white person. He lived with the Maya for about five months, learning the language, studying the religion, perfecting his weaving skills. But his coolest adventure was probably in 1995, when Eustace got the notion to ride his horse across America.

He made it in a little over three months, riding his horse directly into the surf. What guy can resist that introduction or doesn't envy that life? The book was finalist for the National Book Award in 2002 and appears to be more than a story about one man:

In this rousing examination of contemporary American male identity, acclaimed author and journalist Elizabeth Gilbert explores the fascinating true story of Eustace Conway. In 1977, at the age of seventeen, Conway left his family's comfortable suburban home to move to the Appalachian Mountains. For more than two decades he has lived there, making fire with sticks, wearing skins from animals he has trapped, and trying to convince Americans to give up their materialistic lifestyles and return with him back to nature. To Gilbert, Conway's mythical character challenges all our assumptions about what it is to be a modern man in America; he is a symbol of much we feel how [sic] our men should be, but rarely are.

And then, it was on! People were trading bible verses back and forth, accusing each other of lacking a sense of humor and pretty much resorting to name calling.

But I'm trying to learn another code that teaches me to think of people's real reactions not as a reason to get judgmental, but as gifts that can teach me something.

So, I asked myself, does this person have a point? I thought of a story I heard when I was a public defender when another p.d. told me she lived in Omaha close to the area where Danny Joe Eberle disappeared. He was one of John Joubert's victims and he was a paperboy, delivering the Omaha World Herald when he was abducted and killed. Danny was 13 then and I was 16, 200 miles away.

My colleague told me the whole city was different after that and that it's never been the same as it went from a place where people let their kids run freely into an area where they weren't allowed out of your sight.

So, let's be honest. If Anonymous C's point is that it would be hard to love the guy who did this, I'll admit it. But it's too late, he's dead anyway, killed in teh electric chair before it was found cruel and unusual.

But the point of a code isn't to speak the truth, it's to set the tone. I'm not saying that I could love John Joubert if he could just tell me his story, only that most people aren't anything like John Joubert.

It seems to me that even if Joubert can change the city, the way we treat our kids, the wrong thing to do is to start assuming there's a potential Joubert next door. While there are sick, evil people in the world, I haven't met very many.

So I'm not advocating having a cold one with Dahmer to find out what traumatic event triggered cannabilism, only that allowing evil people like that to change our outlook is letting them win.

Last summer, a person in my neighborhood shot his ex-boss on the street less than a mile from my office downtown, and then shot himself. When I came home for lunch that day, my daughter was concerned that there was a cop in front of a house. I told her it was nothing and not to worry, but later that night we found out he lived about two blocks from us. His next door neighbor appeared on the news that night, pointing out bullet holes in his own house that had come from his neighbor. He hadn't felt safe enough to report it when the guy was alive, but now he was speaking out.

Live t.v. news featured the police pulling things out of the house all evening, as all kinds of guns and chemicals were found. I was shocked that a killer lived in my neighborhood and felt guilty about minimizing my own child's fear.

But what happened that night was remarkable. The entire neighborhood switched off their t.v.'s and came out to watch the cops and the t.v. crews in person. We met neighbors we'd never seen before and talked to neighbors like we never had before. Then, the guy who appeared on t.v. asked us if we were interested in having a neighborhood party. People spoke up and volunteered to bring side dishes. A date was chosen and grills were lined up. It was the man's idea, but the whole neighborhood stepped up to have a party to get to know each other and to turn something bad into something to celebrate.

The t.v. new focused on the "if it bleeds, it leads" portion of the story, but few of the neighbors spoke of the guy, now dead, who brought us all together, through his last desperate act.

So, when I listened to an audiobook about Mr. Rogers and heard one of his favorite quotes was "there isn't anyone you couldn't love once you've heard their story," I borrowed it as my own code.

It probably doesn't apply to everyone, but it's better to assume it does until you learn otherwise than to start seeing a potential John Joubert in everyone you meet.

My favorite criminal justice professor told the story of working undercover as Ted Bundy's cellmate, to try to get him to show his evil side after he was so cool and calm with investigators. After I was intrigued by the story, as an 18-year old freshman, I kept asking the professor how it was possible for Bundy to be so inhuman, to kill one day and then be so smooth the next, the professor finally told me not to waste my time trying to figure Bundy out.

"He's pure evil," he said. "Better not to waste your time on people like that when there are so many great people out there in the world."

Anonymous C has a great point as there are people whose story isn't going to make you love them. But, like Bundy and Joubert, or even Hitler, they're so rare that we need only one name.

Hopefully you never meet one as you're out there looking for love and listening to people's stories. A code isn't necessarily the truth; it's what you hope to find.

Friday, March 7, 2008

Scott Horton, who writes the excellent blog "No Comment", wrote this week about Attorney General Mukasey, stating that "the "mentality of courtiers has reappeared" and that this time "they’re offering that crown up to a new King George." Horton goes on to compare Mukasey's statements to the Senate (in which he could not say whether waterboarding was torture) to the writings of Lewis Carroll. He goes on to describe the real purpose of Mukasey's pedifoggery in defense of his client:

But there was never any doubt as to the purpose of Mukasey’s maneuvers. He was keen on maintaining the Justice Department’s formal advice sanctioning torture techniques actually used. His opinion was, after all, the only thing that stood between Dick Cheney and a war crimes indictment.

I love his description of the struggle that accompanied two competing views of the rule, or ruler, of law:

"Much of the constitutional struggle that engulfed the English-speaking world in the seventeenth century revolved around two fairly simple phrases. One was “no man is above the law,” and the other “the king can do no wrong.” Each of these expressions reflected a fundamentally different notion of the rule of law, and they could not be reconciled. The banner of Parliament and Commonwealth stood for the idea that all were bound and beholden to the law, and the decapitation of the sovereign Charles Stuart following his trial and conviction for high crimes was pursued to give vivid witness to that principle. But no sooner was the restoration in place, than the monarchical concept of a king above the law was resurrected. The idea of a king violating the law was a nonsense, they said, because the king was the law. Post-Restoration Britain found a series of legal fictions to address the problem of misconduct by the state, but in concept this often turned on the notion that the king commanded compliance with the law so that unlawful conduct could not be the king’s. The American Revolutionaries, however, took up once more the notions of the Civil War. For them the king was a tyrant, his offending conduct a violation of the natural law. And the notion that the “king can do no wrong” was an insufferable falsehood. Tom Paine put this most powerfully when he wrote these lines in Common Sense."

He goes on to quote these lines from Paine's Common Sense, which I didn't think I'd read but found familiar:

But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

Now, as the House is rumored to have approved telecom immunity, as Obama's advisor has, unlike Obama, come out in favor of it, and as most people still see the issue as Bush described it, as preventing trial lawyers from being able to sue so-called patriotic (but plainly not law-abiding) telecom companies from suing for violations of FISA, I thought of a case I read in law school.

Sonya Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel of this court reversed that conviction on the ground the prosecuting attorney violated 18 U.S.C. § 201(c)(2) when he offered leniency to a co-defendant in exchange for truthful testimony. The panel held the testimony of the co-defendant should have been suppressed and that the failure to do so was not harmless error.

Ms. Singleton, who was convicted largely on the testimony of a "snitch" who received a downward departure, and thus leniency, for testifying agains her, successfully (at least at first) argued that the government violated its own statute in offering the snitch leniency for what it termed favorable testimony. The statue said:

Whoever... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both.

The three-judge Court of Appeals panel found that the government violated this statute and found that the trial court's refusal to suppress the testimony of the snitch was erroneous. Later, in an en banc review, the entire panel reversed, reinstating her conviction.

Watch, though, the way the Court, much like A.G. Mukasey, twists and tortures language in order to arrive where it wants to arrive:

Viewing the statute on its face, it is apparent the dispute revolves about the word "whoever." ... As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant's argument becomes colorable, at least. However, the defendant's approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word "'whoever' includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony."

In other words, Ms. Singleton argues that in America the law is king. But times have changed...

The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government's perspective of the case. Indeed, the prosecutor's function is far more significant... Indeed, a federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. Therefore, the government's sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.

All pigs are equal, but some pigs are more equal than others.

Put into proper context, then, the defendant's argument is: in a criminal prosecution, the word "whoever" in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.

How dare you point out the Emperor's nakedness, little girl! Thank god we can read English better than you. And, there's more than a language we inherited from the nation we broke away from. Unbeknownst to most of you, the law doesn't apply to the King:

There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word "whoever" connotes a being. See Webster's Third New International Dictionary 2611 (1993) (defining "whoever" as "whatever person: any person"). The United States is an inanimate entity, not a being. The word "whatever" is used commonly to refer to an inanimate object. Therefore, construing "whoever" to include the government is semantically anomalous. Looking beyond definitions, though, there are rules of statutory construction that will lead to the same conclusion.

Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. In The Dollar Savings Bank v. United States, 86 U.S. 227, 22 L. Ed. 80 (1873), the Court instructed:

It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him in the least, if they may tend to restrain or diminish any of his rights and interests. . . . The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and practically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.

Next, the Court claims that, in the foregoing "logic" it "ha[s] already established the absurdity in trying to apply section 201(c)(2) to the sovereign's prosecutorial powers."

Has it? And that stuff about the law being king in America? Well, let's just say we've moved beyond "Common Sense" and the King is back.

About Me

I am a criminal defense lawyer in Omaha and these are my thoughts on law, politics and art. Disagree with me? Am I dead wrong? Have your own two cents to add? Leave a comment and let's discuss it. Thanks for stopping by.